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Friday, June 15, 2012

If you want to get a view of how upside down so-called “Civil Rights” can get, you can look no further than James Harrington, director of the Texas Civil Rights Project.

It started with the story of an unidentified father who heard his four year old daughter screaming from a barn on his ranch. When he went to see what the commotion was, he walked in to see a man allegedly doing... something to her. Some reports say she was being allegedly “raped” and some say she was being “molested.” Either way, the father took action and literally beat the man allegedly violating his daughter to death. You can read more about the story, here.

That led to a lot of people saying, “Good job” and “Glad he was dead.” I for one support the death penalty for child rapists, so long as they have due process before they are killed. I am pretty consistent in my disdain for any kind of vigilante justice.

But the father here isn’t claiming that he had a right to summarily execute this person. He is claiming that it was an accident in the process of defending his daughter.

And just to be clear, you have a right to use force not only in self-defense but in the defense of others. And in most states it is implied, but in Texas it is explicitly stated in the statute, that you can use deadly force to prevent or stop a sexual assault.

Now, over at Hot Air, Allah has this analysis of that self-defense claim:

What makes this case conceivably tricky even under Texas’s otherwise expansive self-defense law is that most uses of deadly force involve a weapon, which can kill with one blow, and not one’s bare hands, which usually can’t. If the father had shot the guy or stabbed him in the chest, the fatal blow would have been the neutralizing blow and therefore textbook self-defense; in this case, the neutralizing blow might well have come before the fatal blow. Self-defense technically only covers you up to the former point.

Which is right to a certain extent, but I think he is missing some issues. First off, there is the fact that this father is not only allowed to use the necessary amount of force to stop the attack on his daughter but also amount of force he reasonably believes is necessary to stop the attack. Humans are not robots. We cannot be expected to figure out down to the decimal point how much psi we should apply by striking a fist to a person’s face in order to stop them without killing them. So the question isn’t whether it was strictly necessary at that moment to keep striking his daughter’s alleged attacker; the question is whether he reasonably believed it was necessary.

Another issue is whether or not he had the intent to kill this man. That is an element, too. Now bear in mind in many cases the intent to kill can be inferred from circumstances. If you point a gun at a person and pull the trigger, and you kill the guy, the law allows a jury to say, “gee, I’m going to go out on a limb here, and guess that you were trying to kill him.” Or to be less snarky, the jury is allowed to conclude that you intended your actions to have their natural consequences.

But a punch? Ordinarily a punch is not a deadly act. For instance, Mike Tyson once famously knocked a man out in ninety seconds...

...but even a monster like Tyson has never killed a man in the ring. Indeed contrary to what you might have thought watching a Ron Howard movie, it’s kind of unusual for person to kill with their hands.

Further complicating this situation is that the father literally might not have known his own strength. In this moment of (allegedly) righteous anger the father might have felt the famous “adrenaline rush” that allows mothers to move cars off their children and the like. When your adrenaline starts pumping you are literally stronger than you normally are. So he might not have realized that at this moment he was hitting like... well... Mike Tyson.

Which is not to say that the guy is definitely justified, either. There is an investigation going on, as there should always be when a guy is killed, and maybe we will learn something surprising that turns the facts on their head. But at this moment the state of Texas would have to prove beyond a reasonable doubt that 1) he was not acting reasonably in defense of his daughter and 2) he intended to kill the man. And barring some surprising set of facts, it seems unlikely that the state of Texas will to meet that burden.

But enter director of the Texas Civil Rights Project, James Harrington. He decided to tut-tut all of this support for the father as follows:

James Harrington, director of the Texas Civil Rights Project, an Austin-based nonprofit group, questioned the father’s decision to “summarily execute” the alleged molester without due process.

“Assuming it’s true that this guy was molesting the daughter, and we don’t know what exactly happened at this point, he would then have the right to defend [her], and hit him enough to have him stop,” Harrington told FoxNews.com. “But you cannot summarily execute him, even though I can understand the anger he would have.”

Without specific knowledge of the case, Harrington said he was “surprised” that the girl’s father had not been already charged.

Some of what Harrington said is valid, but the part that galled me is where he said that the man should have been charged. No, in fact I think barring some surprising revelation, I don’t think he should be charged. You can accuse me of impressing my recent own nasty experiences into this, but I don’t think a person should be charged—let alone arrested—unless the prosecutor at least thinks you are in fact guilty (after an investigation, of course).

And as a leader of a so-called Civil Rights organization, Harrington should get that. All criminal suspects deserve that, whether they are men accused of doing unspeakable acts to little girls, or fathers accused of murder pleading the defense of his daughter’s innocence. Both kinds of defendants equally should be free from prosecution until the prosecutor has reasonable certainty that a crime has been committed.

As I said recently, the government exists to protect our rights. And even the best governments can fail. This little girl had a right not to be sexually violated. The state allegedly failed to prevent that. I don’t say that as criticism—I don’t think we want a government so omnipresent as to be within earshot of every barn in America. But allegedly it didn’t successfully protect this little girl and it (allegedly) fell upon this father to do so. And to hear him tell it, in doing so he vindicated some of the most precious human rights there are. And those rights deserve recognition, too.

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6 comments:

I mean, I do believe that the see-saw can teeter-totter too far either way in cases where death results from (alleged) self-defense, especially when the dead party is wholly unsympathetic. Some of the whoops and hollers in support of this father come on a bit too strong for my tastes, and make me wonder whether these folks are just itching to dispense a little vigilante justice, and perhaps even hoping to get the chance--though it's far more likely that it's just men "proving" they're "real men." (I'm not one for celebrating death, even of demonstrably evil people. I found a lot of the "bin Laden is dead" hootin' and hollerin' distasteful, too. Obviously, I don't score high with some folks on that "real men" scale.) The father, from what I've read, is remorseful over having killed the guy, in spite of what he'd done to his daughter. Some of the commenters at Allah's post talk about the residual effects of taking a life, even when it's legally justified.

I believe such cases need to be thoroughly investigated, with a little extra bias toward the rights of the guy unable to tell his side of the story, perhaps--I'm not saying the person who did the killing shouldn't be considered innocent until proven guilty or nothin', but I do think there ought to be a healthy dose of skepticism driving law enforcement to be sure that it was self-defense, not a murder dressed up to look like self-defense.

(And let me be clear, here... I'm NOT casting aspersions on the father in THIS PARTICULAR CASE. It sounds to me like he did no more or less than he felt was necessary to defend his daughter, and I fully expect that the investigation--even (especially) my "heightened scrutiny as a result of being skeptical" investigation--will bear that out.)

But I do believe that whenever someone is killed or seriously injured to the point that they cannot tell their side of the story, in a case where the living party asserts self-defense, it is incumbent on law enforcement and the legal system to take extra steps to assure that justice is served.

If ya ask me, a good bit of the uproar over the Trayvon Martin case was sparked by the fact that it didn't look like that investigation was taking place, and the lack of public relations (obviously, the investigation was going on behind the scenes, so the story wasn't as it appeared) allowed both legit and illegit factions to start asking/demanding answers.

Folks who kill and claim self-defense don't need to be charged or arrested straight off--but they do need to be thoroughly questioned and otherwise investigated, and not exonerated by law enforcement officials in the court of public opinion until they are sure no case can or should be made.

In that regard--and with an eye toward the folks who make online comments figuratively high-fiving this father...if not describing exactly what size flaying knife they would've used to peel this guys skin off alive, and the like, if it was their daughter--I understand where the human rights guy was coming from. (I get vengeance, especially where one's children are concerned...but that's why we have a theoretically dispassionate law enforcement and legal system, and don't leave the administration of justice to the wronged parties alone.)

Well, What do you expect there are so many "Civil Rights" "leaders" that there is sure to be one with his nose bent out of shape about any high profile case you care to cite, and that stuff makes for awesome headlines so you can't really blame the media. Remember Salaries are paid by the ads not the verbs, Suspicion is the new religion. Now as the token liberal here i must raise the point, on the capital punishment issue. How would you propose to protect against wrongful executions. I agree with you in principal, in fact i'd go even as far as to support public hangings for such offenders, but with the current DP system the way it is how could we do it, and be reasonably sure of the result. Need I remind you of the McMartain case, and similar incidents.

Thing is, most people aren't defense lawyers. Defense lawyers would be sympathetic to any client, pretty much. You could be the combination of Hitler, Stalin, and Pol Pol, and you still get your lawyer providing a zealous defense. It's their job, just a like a sewer pipe does its important but undignified job.

For normal people, the molester is completely unsympathetic. It's hard to see someone that horrible as a person. Saying he got what he deserved isn't the same a approving of the manner of death. If a mafia hitman is gunned down by a rival gang, you could say he got what he deserved, but he still think the rival gang's shooters are criminals.

Maybe I'm misunderstanding what you're saying, Omega, but I don't believe defense lawyers, as a rule, find their clients sympathetic.

Rather, I believe what you say further down, that they have a job to do, unpleasant though it may be, and that they do it, regardless of what they personally believe about their client, either in terms of guilt or innocence or as a person. (I'm sure innocent people can behave like assholes, and guilty folks can be quite charming, apart from their penchant for committing crimes.)

In that regard, I'm torn when it comes to attacking defense attorneys for defending the clients they do...

On one hand, it's hard to understand how anyone could advocate for some kinds of / specific criminals, even for money. Arguing that some overwhelmingly damning piece of evidence cannot be admitted at trial because the police officer failed to say or do some small thing in the course of finding/securing/logging it, thereby letting a clearly guilty man go free, seems like an awful way to make a living, karmically-speaking.

On the other hand, what could be more noble and in keeping with our American values and legal standards than upholding the rights of even the lowliest scumbag? I remember reading an article somewhere (which of course, I cannot find now) that interviewed one of the military lawyers who had been assigned to defend an alleged GITMO terrorist, and how he spoke about the necessity of his doing so in our adversarial legal system. He was clearly honored to've served both his country and the law by doing everything he could to defend his client. Just based on the concept of "innocent until proven guilty," everyone--and maybe even the accused, especially--deserve to have zealous representation, and the people who provide it should be proud of what they do...

(Obviously, I lean one way idealistically, and the other in a more "real world" sense...)

The fact remains though, that not everyone who is accused of some criminal or civil breach is actually guilty... ...and for me, that tips the scale.

...As far as we civilians, though... I do get what you're saying... It's not that I don't understand the folks who whoop and holler and high-five when bad people meet their ends... I just personally find it a little distasteful... (Maybe it has something to do with my religion, or the number of people in my life who've died.)

I don't (or at least, try not to) look down on those who don't see it my way, but by the same token, I doubt I'll be joining them in the celebrations anytime soon...

About Me

Just a regular, sort of cranky moderately conservative lawyer, living in the greater Washington, D.C. and ruminating on law, life and the local spectator sport known as politics.
Btw, if you want to email me, write to edmd5.20.10 [at] gmail.com. I assume by now you understand that you are supposed to use one of those @ symbols for "[at]."